UNITED STATES of America, Plaintiff-Appellee, v. Leland Victor NIELSEN, III, Defendant-Appellant.
No. 14-4650.
United States Court of Appeals, Fourth Circuit.
Argued: Sept. 17, 2015. Decided: Feb. 2, 2016.
811 F.3d 224
Before DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded with instructions by unpublished opinion. Senior Judge DAVIS wrote the opinion, in which Judge DUNCAN and Judge DIAZ joined.
Unpublished opinions are not binding precedent in this circuit.
DAVIS, Senior Circuit Judge:
This case arises from the conviction of Leland Victor Nielsen, III, on four counts of aggravated sexual abuse of a minor by force in violation of
I.
A.
On May 22, 2013, the FBI received a report of potential sexual assaults occurring at the Fort Jackson Army installation in Columbia, South Carolina. Twelve-year-old B.R. had told her guidance counselor that she had been sexually assaulted by her thirty-one-year-old uncle, Leland Nielsen, III, at her family‘s home on Fort Jackson. Nielsen, who was married to the sister of B.R.‘s mother, also lived in the home. A team of FBI agents proceeded to the Fort Jackson residence to investigate the allegations.
Nielsen was not at the residence when the agents arrived, but some family members were present and gave consent for the agents to enter the house. Agent Michael Stansbury asked Nielsen‘s mother-in-law to call Nielsen and ask him to come home, but not to tell him the FBI was there. Nielsen‘s mother-in-law called Nielsen and falsely told him that he needed to come home due to a medical emergency involving his sister-in-law.
Agent Robert Waizenhofer waited in front of the house for Nielsen to arrive. When Nielsen arrived, at approximately 8:00 p.m., Agent Waizenhofer approached him as he exited his car. The two began speaking in the driveway. Agent Waizenhofer had not drawn his gun, and he was not wearing any FBI insignia. He told Nielsen that he was not in trouble and asked him about B.R.‘s allegations. Nielsen began admitting to sexual acts with B.R. near the start of the interview, and Agent Waizenhofer continued to question Nielsen to elicit details. Throughout the interview, Agent Waizenhofer attempted to “empathize” with Nielsen in an effort to open up conversation with him. J.A. 48.1
Agent Waizenhofer was later joined by Agent Stansbury, and the agents took turns asking Nielsen questions. At some
At some point during his interaction with the agents, Nielsen told them that he had post-traumatic stress disorder (PTSD) resulting from an accident at a chemical plant where he was previously employed and that he was on medication to treat the disorder. While Nielsen ultimately admitted to engaging in various sex acts with B.R., he indicated that his PTSD was to blame for his conduct. J.A. 42-44.
The entire interview took place in front of Nielsen‘s residence. Throughout the interview, there were five or six agents present at the residence. Nielsen was not handcuffed or physically restrained while agents spoke with him, and he was able to move around the yard and driveway. Agent Waizenhofer testified that, at one point, Nielsen retrieved a bottle of water from his car during the interview. J.A. 60-61. Nielsen was never told that he was free to terminate the interview and leave, and he was not provided with Miranda warnings prior to speaking with the agents. The interview lasted until approximately 11:00 p.m., when the agents placed Nielsen under formal arrest.
B.
Nielsen was indicted on four counts of aggravated sexual abuse of a minor by force under
The case proceeded to trial. Before the jury charge, Nielsen objected to a portion of the district court‘s instruction on the force element of the
The jury returned guilty verdicts on all counts. Nielsen raised his challenge to the force instruction again in a motion for a new trial, which was denied. The court sentenced Nielsen on all eight convictions as follows: imprisonment for terms of life as to each of the four
II.
A.
Nielsen contends that the district court erred in denying his motion to sup
We review the district court‘s findings of fact on a motion to suppress for clear error and its legal determinations de novo. United States v. Hashime, 734 F.3d 278, 282 (4th Cir.2013) (citation omitted). When reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government. Id. (citation omitted).
The Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.”
Absent formal arrest, Miranda warnings are required only “where there has been such a restriction on a person‘s freedom as to render him ‘in custody.‘” Id. (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)). “An individual is in custody for Miranda purposes when, under the totality of the circumstances, ‘a suspect‘s freedom of action is curtailed to a degree associated with formal arrest.‘” Id. (quoting Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). This inquiry is objective, looking to whether “‘a reasonable man in the suspect‘s position would have understood his situation’ to be one of custody.” Hashime, 734 F.3d at 282 (citation omitted). A number of factors are relevant to this inquiry, including “the time, place and purpose of the encounter, the words used by the officer, the officer‘s tone of voice and general demeanor, the presence of multiple officers, the potential display of a weapon by an officer, and whether there was any physical contact between the officer and the defendant.” Id. at 283 (citation omitted). We also consider an individual‘s isolation and separation from family, as well as any physical restrictions. Id. (citations omitted).
Considering the totality of the circumstances, the facts here do not demonstrate that Nielsen was in custody when he spoke with federal agents on May 22, 2013. Nielsen was interviewed by agents at his residence rather than at a police station or other law enforcement facility. While this fact is not determinative, we are generally less likely to regard an interview conducted in a familiar setting like a suspect‘s home as a custodial interrogation. See id. at 284. Five or six federal agents were present at the residence, but no more than three agents interviewed Nielsen at a time. Agent Waizenhofer, the agent who initiated contact with Nielsen, told Nielsen that he was not in trouble and maintained an “empathetic” tone with Nielsen throughout the interview. The agents never drew their weapons at any point during the interaction. Nielsen was not handcuffed or otherwise physically restrained, and he was able to move around the yard and driveway. Additionally, Nielsen never asked to end the interview or to leave.
To be sure, some aspects of the agents’ interaction with Nielsen are consistent
Taken together, however, the circumstances do not reflect the restriction of freedom associated with formal arrest. While several aspects of the interview favor a finding of custody, we do not fault the district court‘s conclusion that they are outweighed by circumstances that suggest otherwise—the small number of agents at the residence, the lack of any physical restraints on his movement and his ability to move around the yard and driveway, and, at the start at least, the generally empathetic tone of the interview. Nielsen‘s interview was not conducted in the sort of environment that we have previously found consistent with custody. See, e.g., Hashime, 734 F.3d at 281, 283-85 (finding three-hour interview of suspect in home to be custodial interrogation when suspect was awakened at gunpoint with fifteen to thirty officers present in the residence, was not permitted to move unless guarded, and was isolated from his family and questioned in a small storage room); United States v. Colonna, 511 F.3d 431, 435-36 (4th Cir.2007) (finding three-hour interview to be custodial interrogation when suspect was awakened at gunpoint with twenty-three officers present in the residence, was guarded at all times, and was questioned in an FBI vehicle).
It is possible that Nielsen did not feel, subjectively, that he was free to terminate the encounter. But our inquiry is objective and not based on the suspect‘s subjective feelings. Hashime, 734 F.3d at 285. Any interview by law enforcement with a suspect carries certain “coercive aspects” due to the heightened risk that the suspect will be arrested and charged. United States v. Hargrove, 625 F.3d 170, 178 (4th Cir.2010). We cannot conclude, however, that Nielsen was in custody simply because he was approached by law enforcement for questioning about the allegations made against him. See id.
We hold that, viewing the evidence in the light most favorable to the government, a reasonable person in Nielsen‘s position would not have understood his situation to be one of custody. The agents were not required to recite Nielsen‘s Miranda rights prior to the interview, and Nielsen‘s statements are thus not subject to suppression under Miranda and its progeny.
B.
Nielsen also argues that even apart from the requirements of Miranda, his statements were not voluntary. A statement is involuntary under the Due Process Clause when it is “‘extracted by ... threats or violence’ or ‘obtained by ... direct or implied promises’ or ‘the exertion of ... improper influence.‘” United States v. Ayesh, 702 F.3d 162, 168 (4th Cir.2012) (omissions in original) (quoting Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976)). The relevant inquiry is “whether the defendant‘s will has been overborne or his capacity for self-determination critically impaired because of coercive police conduct.” United States v. Cristobal, 293 F.3d 134, 140 (4th Cir.2002) (citations omitted). To make this determination, we examine the totality of the circumstances, including “the characteristics of the defendant, the setting of the interview, and the details of the interrogation.” Id. (citation omitted). Coercive police con
To support his argument, Nielsen points to many of the same aspects of his interview with the agents that he identified as indicative of custody. None of these factors—the sometimes aggressive questioning of the agents, the length and location of the interview, or the continuation of the interview after Nielsen had confessed to the substance of the allegations—rise to the level of coercive police conduct. Nielsen can point to no conduct by the agents that would constitute the types of actions generally considered to be coercive under our case law, such as threats or violence, lengthy marathon interrogations, or extended isolation. See United States v. Braxton, 112 F.3d 777, 784-85 (4th Cir.1997) (en banc) (collecting cases).
Nielsen also emphasizes that he suffers from PTSD, had taken several medications the morning of the interview, and experienced anxiety during the interaction with the agents. A suspect‘s mental condition, whether due to mental illness or medication, is not, standing alone, sufficient to render that suspect‘s statements involuntary. Cristobal, 293 F.3d at 141 (citing Colorado v. Connelly, 479 U.S. 157, 164-65, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)). And even when taken together with the other circumstances of the interview, Nielsen‘s mental condition does not lead to the conclusion that his “will [was] overborne or his capacity for self-determination critically impaired” during the interrogation. Id. at 140 (citation omitted). Accordingly, we hold that the district court did not err in concluding that the circumstances surrounding Nielsen‘s interrogation comported with due process.
III.
A.
Nielsen also challenges his convictions as multiplicitous. He argues that Counts 1, 3, 5, and 7 of the indictment, charging aggravated sexual abuse of a minor by force, and Counts 2, 4, 6, and 8, charging sexual abuse of a minor, are multiplicitous because the district court instructed the jury that it could infer force to meet the elements of aggravated sexual abuse of a minor by force if it found that the defendant had disproportionately greater strength than the victim, which, Nielsen contends, will “inevitably” be the case in a child abuse case given the disparity in age between defendant and victim. Br. Appellant 18. We agree that Nielsen‘s convictions are multiplicitous, though not for the reasons cited by Nielsen.2
Among the guarantees provided in the Double Jeopardy Clause is protection against “the imposition of cumulative punishments for the same offense in a single criminal trial.” United States v. Shrader, 675 F.3d 300, 313 (4th Cir.2012) (citation omitted). “The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense....” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). An indictment is improperly
When a defendant is convicted of violating multiple statutory provisions for a single act or transaction, we employ the analysis set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine if the convictions offend the Double Jeopardy Clause. Under Blockburger, “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” United States v. Martin, 523 F.3d 281, 291 (4th Cir.2008) (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180). Because the Blockburger analysis is a “rule of statutory construction,” it “should not be controlling where ... there is a clear indication of contrary legislative intent.” United States v. Allen, 13 F.3d 105, 108 (4th Cir.1993) (omission in original) (quoting Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), and Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981)).
Under Blockburger, sexual abuse of a minor is a lesser included offense of aggravated sexual abuse of a minor by force.
Whoever, in the special maritime and territorial jurisdiction of the United States ... knowingly engages in a sexual act with another person who—
(1) has attained the age of 12 years but has not attained the age of 16 years; and
(2) is at least four years younger than the person so engaging;
or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.
Whoever, in the special maritime and territorial jurisdiction of the United States ... knowingly causes another person to engage in a sexual act—
(1) by using force against that other person; or
(2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping;
or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.
As the government concedes, because the only difference between the two offenses is the additional requirement under
The government nonetheless contends that Nielsen‘s convictions do not offend the Double Jeopardy Clause because Congress intended to authorize separate punishments for sexual abuse of a minor and aggravated sexual abuse of a minor by force. However, it can point to nothing in the legislative history of either statute evincing “a clear indication of contrary legislative intent” to impose multiple punishments for the same offense. Allen, 13 F.3d at 108 (quoting Albernaz, 450 U.S. at 340). And the cases on which the government relies were decided based on a Blockburger analysis of the two statutes prior to the Supreme Court‘s decision in Alleyne and are therefore inapposite. See United States v. Rivera, 43 F.3d 1291, 1297 (9th Cir.1995); United States v. Amos, 952 F.2d 992, 994 (8th Cir.1991), abrogated on other grounds, United States v. Allery, 175 F.3d 610 (8th Cir.1999); United States v. Morsette, 858 F.Supp.2d 1049, 1052-53 (D.N.D.2012). We therefore see no reason to deviate from the result of the Blockburger analysis here.
Accordingly, we conclude that the district court should have merged the offenses so that Nielsen would have only been convicted of, and sentenced for, the greater
B.
Nielsen, however, failed to preserve this issue for appeal. While Nielsen argues that the multiplicity error was not apparent until the district court charged the jury with the allegedly erroneous force instruction, the multiplicity error we identify above was apparent on the face of the indictment, yet was never raised before the district court. Pursuant to the version of Rule 12 in effect at the time of Nielsen‘s trial, Nielsen‘s challenge to the indictment is waived because he did not raise it in a pretrial motion, although “relief from the waiver” may be granted “[f]or good cause.”
Under plain error review, a defendant must demonstrate that “an error occurred, that the error was plain, and that the error affected his substantial rights.” Id. (citing Olano, 507 U.S. at 732, 113 S.Ct. 1770). An error is plain if it is “clear” or “obvious,” Olano, 507 U.S. at 734, 113 S.Ct. 1770, and it affects substantial rights if it prejudices the defendant, Bennafield, 287 F.3d at 322 (citing United States v. Hastings, 134 F.3d 235, 240 (4th Cir.1998)). Correction of the error is at our discretion, which we exercise only when the error
Nielsen‘s multiplicitous convictions satisfy these requirements. That the
C.
Having concluded that Nielsen‘s convictions are multiplicitous and that the error was plain and is appropriate for us to correct, we turn to the remedy. The usual remedy for multiplicitous convictions is to vacate the offending convictions and order a resentencing of the defendant accordingly. See United States v. Brown, 701 F.3d 120, 127-28 (4th Cir.2012) (citing Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985)). Nielsen nonetheless argues that the multiplicity error entitles him to a new trial because the jury “was prejudiced by the Government‘s ‘prolix pleading’ with regard to multiplicitous charges implicating the same exact elements of proof.” Suppl. Br. Appellant 7. We rejected a similar argument in United States v. Colton, 231 F.3d 890 (4th Cir.2000), and do so again here. Because the same evidence was used to prove the
IV.
For the reasons set forth above, the district court‘s denial of the motion to suppress is affirmed. Nielsen‘s convictions and sentences on Counts 2, 4, 6, and 8 for sexual abuse of a minor under
AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.